As mandatory e-filing (and the accompanying switch to e-service, e-dockets, and e-notices) spreads across Texas, we need to ensure that we stay abreast of what is happening on the court’s docket, especially if filings reach us through email. An appeal pending in the Federal Circuit provides a cautionary tale.
After a federal district judge in San Antonio signed a $40 million judgment against the defendants in Two-Way Media, LLC v. AT&T Operations, Inc., et al., defense counsel at Sidley & Austin filed several post-judgment motions and several motions to seal those motions. The district court granted the motions for leave to file under seal and denied the post-judgment motions on November 22, 2013. The denial of the post-judgment motions started the 30-day clock for the defendants to file their notice of appeal under Federal Rule of Appellate Procedure 4(a)(4).
The court's ECF system sent notices to all counsel of record. But apparently, defense counsel read the docket text in the ECF e-mail but did not read the orders. As a result, more than 30 days passed before counsel realized that the post-judgment motions had been denied. As soon as they realized their mistake, they filed a motion to extend the time to file the notice of appeal under Rule 4(a)(5) and argued that they had not received proper notice of the orders denying their post-judgment motions because of the language of the ECF e-mail
In an 8-page order issued in February, the district judge denied the motion. (Download the District Court's order.) The court found that the defendants failed to show either good cause or excusable neglect, as required by Rule 4(a)(5). The court expressly found that it was not sufficient for the attorneys to rely on the text of the e-mail without actually reading the orders. The Court further stated that it
finds it very troublesome that: for almost 52 days after the entry of the orders, none of the at least eighteen counsel that received the [ECF emails] on behalf of Defendants, even after admittedly having their assistants download and file such orders, bothered to read the orders issued by the Court, check the docket for activity, or check on the status of the case.
AT&T has appealed the district court’s order to the Federal Circuit. The case number in the Federal Circuit is 14-1302. Two-Way Media has moved to dismiss the appeal and AT&T's response was filed last week.
What can Texas lawyers learn from AT&T's experience? Under the new electronic filing system, the e-notice from the court has very little information about a filing or order. Instead, it includes a link to download the document. Downloading and reading the document is the electronic equivalent of opening the envelope from the clerk with a hard copy of the order. Attorneys should ensure that their workflow includes review of these downloaded documents.
We will keep an eye on the appeal and let you know how it turns out. In the meantime, are there any other pitfalls with e-filing, e-service, and e-docketing that you have encountered (or narrowly avoided)?
- Rich Phillips, Thompson & Knight